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Death Penalty in India; A Case of Reckless Justice

Sreeparvathy. G
National Law University, Jodhpur, India
Sreeparvathy.g@gmail.com

I. INTRODUCTION
Any discussion on death penalty conventionally revolves around the arguments for its
abolition or retention. While arguments for its abolition are primarily based on human rights
and human dignity, those who support its retention emphasises on its value as a deterrent, for
death is the greatest fear in most human minds. This paper does not intend to engage in such
a penological or philosophical discussion on the desirability of abolishing or retaining capital
sentence. It discusses the law relating to death penalty in India and examines the extent to
which it conforms to the constitutional mandates of justice, fairness and equality. India is one
of the Forty-three countries retaining capital punishment. 1 The recent executions of Ajmal
Kasab and Afsal Guru have once again brought the debates on death penalty in to public
discourse. It is viewed by many as an onslaught on Indias growing image as a nation moving
towards complete abolition of capital punishment. It has also brought forth a number of
controversies relating to imposition of capital punishment like the rights of the convict and
his family to be informed in advance about the impending execution, delay in execution as a
ground for clemancy etc. However, it cannot be denied that imposition of death sentences and
rate of executions had substantially declined over the years. For instance, there was no
execution between 2005-2012. 2 Also, the period 2007-12 witnessed the maximum number
of presidential pardons, with Mrs. Pratibha Patil commuting death sentence of thirty-eight
convicts to life imprisonment.3 Thus, it may be said that, developments in India had been
consistent with the global trend towards abolition, though a legislative act abolishing it was
still beyond contemplation. Legislative retention of capital punishment is often justified by
Indias vulnerability as a terrorist affected country. In the absence of any major legislative
measure towards elimination of capital punishment, a seminal role in bringing down the
instances of legal killing has been played by the Supreme Court of India. The doctrine of

1
According to Hands off Cain Report 2012, of the Nonviolent Radical Party, Transnational and Transparty
(PRNTT), an NGO working in the area of death penalty, India is one of the 43 countries that retain death
penalty. The report further states there are currently 155 Countries and territories that, to different extents, have
decided to renounce the death penalty. Of these: 99 are totally abolitionist; 7 are abolitionist for ordinary crimes;
5 have a moratorium on executions in place and 44 are de facto abolitionist (i.e. Countries that have not carried
out any executions for at least 10 years or Countries which have binding obligations not to use the death
penalty). See http://www.handsoffcain.info/bancadati/index.php?tipotema=arg&idtema=16308818

2
In 2004 Dhanajoy Chatterjee was executed for the murder of a teenage girl. Death sentence awarded by the
Alipore Sessions court was upheld by both the High Court and the Supreme Court(1994 SCC (2) 220). He was
executed on August 14, 2004 after his mercy petition was rejected by both the Governor and the President.
3
It is estimated to have constituted almost 90% of the total pardons given so far. She rejected only five petitions
received. Supra 1
rarest of rare enunciated by the Court in Bachan Singh v. State of Punjab,4 mandated that
death penalty must be awarded only in rarest of rare cases where the alternative
(punishment) is unquestionably foreclosed. This decision of the constitutional bench of the
apex court vested the sentencing judge, with a duty to examine the case threadbare and award
the extreme penalty only when it is shown that the accused is beyond reform and
rehabilitation and is a threat to the society. It was acclaimed, even internationally, as an act of
judicial balancing of individual and state interests.

However, the interpretation and adoption of Bachan Singh dictum by some of the later
benches has invited severe criticisms. For instance, a report published in 2008 by the
Amnesty International and PUCL, termed death penalty in India as Lethal Lottery pointing
out the inconsistent stands taken by various benches in following/interpreting Bachan Singh5.
As a testimony to the arguments of the critics, the Supreme Court itself recently held that
seven of its judgements awarding death were per incurium the 1973 constitutional bench
decision.6 In another unprecedented move, fourteen former judges (including a former judge
of the Supreme Court) wrote to the President seeking his intervention under Art.72 of the
Constitution to pardon 13 convicts who were, wrongly convicted to death.7 They contended
that, executions of two convicts, among those who were sentenced to death on an error of
law, constituted the gravest known miscarriages of justice in the history of crime and
punishment in independent India8

In this background the paper analyses the law and practice of death penalty in India and
argues that it fails to conform to the constitutional mandates of equality, fairness and justice.
Part-II of the paper deals with thean overview of the death penalty laws in India. Part III
contains an enunciation of the challenge to the constitutionality of death penalty and how the
Supreme Court has, through a creative formulation of the test of rarest of rare upheld its
validity. Part IV examines the decisions of the Supreme Court and analyses to what extent
the Court has been able to consistently deliver justice in accordance with the principles of
stare decisis and equality of law. The paper follows a three pronged approach in
demonstrating why the law and practice of death penalty in India must be objected to. First
argument concerns the misinterpretation of rarest of rare by later benches of the apex court.
Secondly, it analyses cases where similar facts have been treated dissimilarly resulting in a
violation of the basic canon of justice that like cases must be treated alike. Finally, the
possibility of subjective factors, including the constitution of benches and personal

4
AIR 1980 SC 898.
5
Lethal Lottery-Death Penalty in India, Amnesty International and PUCL, (2008) available at
http://www.amnesty.org/en/library/info/ASA20/007/2008
6
Santhosh Kumar Bariyar v. State of Maharashtra, (2009) 6 SCC 498, Dilip Tiwari v. State of Maharashtra,
(2010) 1 SCC 775, Rajesh Kumar v. State, (2011) 13 SCC 706.
7
On 25th July 2012, fourteen former judges, wrote separate letters to the President appealing his intervention to
commute the death sentences of 13 convicts under Art.72 of the Constitution. They contended that these
convicts were erroneously sentenced to death, according to the admission of the Supreme Court itself. The
thirteen judges are JJ P.B Sawant (Former Judge SC of India),A.P Shah( Former Chief Justice, Delhi HC), Bilal
Nazki (Former Chief justice, Orissa HC), P.K Misra (Chairman Goa Human Rights Commission and former
chief Justice Patna HC), Hosbet Suresh (Former Judge, Bombay HC), Panachand Jain (Former Judge, Rajasthan
HC), Prabha Sridevan (Former Judge, Madrass HC), K.P Sivasubramaniam (Former Judge, Madrass HC), P.C
Jain (Former Judge, Rajasthan HC),S.N Bhargava (Former Chief Justice Sikkim HC and Former Chairperson
Assam Human Rights Commission), B.G Kolse Patil (Former Judge, Bombay HC), Ranvir Sahai Verma
(Former Judge, Rajasthan HC), B.A Khan (Former Chief Justice, J&K HC), and B.H Marlapalle (Former
Judge, Bombay HC).
8
Frontline
philosophy of the judges creeping in to decision making beyond permissible limits casting
shadow on the objectivity of judicial decision making.

II. The Legislative Framework

Indian law provides for death penalty for a number of offences either under the Indian Penal
Code9 (hereinafter IPC) or other special enactments. Under IPC there are ten offences, most
of which relate to offences against state or offences against human body, for which death is
the maximum penalty. 10 Commenting on this, the authors of the Code maintained that, we
are convinced that it ought to be very sparingly inflicted, and we propose to employ it only
in cases where either murder or the highest offence against the state has been
committed.11 For most of the offences where death penalty is provided, the code leaves a
good amount of discretion with the judge either by providing the minimum sentences or
alternative sentences. The reason adopting such a policy of discretion may be found in one
of the basic principles of criminal sanction viz. proportionality which mandates that
punishment must be proportionate to the crime committed. Thus, a judge deciding the
matter is regarded as best person to ascertain the liability and award individualised
sanctions. This exactly is the reason why the Supreme Court in Mithu v. State12 struck down
S.303 of IPC.

In addition, there are special legislations imposing death penalty, some of


them even authorising mandatory death penalty. For instance, laws relating to armed
forces like the Air Force Act, 1950, Navy Act, 1950 contains mandatory death penalty.
Legislations concerning the security of the state and maintenance of law and order, like
the Defence of India Act, 1971, Defence and Internal Security Act, 1971, Terrorist and
Disruptive Activities (Prevention) Act, 1987, Prevention of Terrorism Act, 2002,
Unlawful Activities Prevention Act, 1967, Explosive substances Act, 1908 and Arms Act,
1959 also authorize imposition of death. Another category of legislations include social
purpose legislations like Scheduled Castes and Scheduled Tribes (Prevention of atrocities)
Act, 1987, Commission of Sati (Prevention) Act, 1987 and Narcotic Drugs and
Psychotropic Substances (Prevention) Act, 1985. Some of the state legislations too, contain
death penalty provisions. For instance legislations dealing with organised crimes like
Maharashtra Control of Organised Crime Act, 1999, Karnataka Control of Organised
Crime Act, 2000, Andhra Pradesh Control of Organised Crime Act, 2001 etc.13 However,

9
Sec.53 of IPC dealing with Punishments to which offenders are liable under the Code, provide for death as the
first category.
10
The offeneces are waging war against the government of India (S. 121), abetment of mutiny actually
committed(S.132), perjury resulting in the conviction and death of an innocent person (S.194), threatening
or inducing any person to give false evidence resulting in the conviction and death of an innocent
person (S.195 A), murder (S. 302) and murder committed by a life convict (S.303),abetment of suicide by a
minor, insane person, or intoxicated person (S.305); attempted murder by a serving life convict, (S..307)
kidnapping for ransom(S.364A) and dacoity with murder (S.396)
11
Ratanlal and Dheerajlal IPC ed 28, Wadhwa,1632
12
MANU/SC/0065/1983
13
For example, Karnataka Control of Organised Crime Act, 2000, contains the following provision- Section
3 (2) whoever commits an organized crime shall- (i) if such act has resulted in the death of any person, be
punishable with death or imprisonment for life and shall also be liable to fine.
it can be seen that the jurisprudence in this area has been formulated mostly with reference
to murder cases where the sentencing judge has the discretion to impose either death or
life imprisonment.

An analysis of the legal developments post-independence would show that, the substantive
law regarding death penalty has remained the same. But there has been a critical shift in
the procedural requirements aiming at making death an exception. The Criminal
Procedure Code, 1898, which continued to govern the procedural requirements till
1956, considered death penalty as the normal punishment for murder and mandated that
the judge has to record reasons for not awarding death sentence. 14 This was done away
with when the new Criminal Procedure Code was enacted in 1955, which deleted section
365 (7). The 1973 Code made further changes and section 354 (3) mandates the judge to
give special reasons when death penalty is awarded in the alternative.15 These changes
clearly indicate the shift in the legislative policy that in cases where death is provided as an
alternative, life imprisonment is the rule and death is an exception.

III. Constitutionality of Death Penalty and the doctrine of Rarest of Rare

The constitutionality of death sentence was first contested, without success in


Jagmohan Singh v. State of U.P.16 The challenge based, inter alia, on unguided judicial
discretion was rejected by the court saying that, exercise of judicial discretion on well-
recognised principles is the safest possible safeguard for the accused. 17In 1980, another
constitutional bench of the Supreme Court was called upon to reconsider the constitutional
vires of death penalty in Bachan Singh.18 There were developments of considerable
relevance, both at the legislative and judicial spheres of law-making, in the post-Jagmohan
era, which the new bench had to consider. These include the coming in to force of the new
Criminal Procedure Code (which mandated recording of special reasons for the award of
death penalty) and the decision in Maneka Gandhi v. Union of India,19 (which held that the
procedure established by law contemplated under Art.21 must be just, fair and
reasonable). In addition some judicial pronouncements, post Jagmohan, created confusion
regarding how a balance must be drawn between life imprisonment and death penalty.
Though the Court in Ediga Annamma v. State of Andhra Pradesh did make an attempt to lay
down some definite guideline as to how synthesis must be achieved between death and life
imprisonment, it was hardly followed.20 Further observations of the Court in Rajendra

14
Section 365 (7) of Criminal Procedure Code, 1898.
15
S. 354 (3) provides When the conviction is for an offence punishable with death or, in the alternative with
imprisonment for life or imprisonment for a term of years, the judgement shall state the reasons for the sentence
awarded, and, in the case of sentence of death, the special reasons for such sentence.
16
AIR 1973 SC 937. The court rejected the argument that death penalty is violative of Articles 14,19 and 21 and
observed that, if the legislature decides to retain death penalty, it would be difficult for the court to question the
wisdom and propriety in retaining death penalty in the absence of objective evidence. According to them udicial
discretion is the best possible safeguard against arbitrary award of death penalty.
17
Para 27
18
AIR 1980 SC 898
19
(1978) 2 SCR 621
20
Commenting on it, Prof. Blackshied made the following observations, the fact is that decisions since Ediga
Annamma have displayed the same pattern of confusion, contradictions and aberrations as decisions before the
case where life and death are at stake, inconsistencies which are understandable may not be acceptable. The
hard evidence of the accompanying kit of cases compels the conclusion that, atleast in contemporary India, Mr.
ustice Doughlas argument in Furman v. Georgia is correct; that arbitrariness and uneven incidence are inherent
and inevitable in a system of capital punishment.. and therefore in Indian Constitutional terms and inspite of
Prasad v. State of UP that special reasons must relate to the criminal rather than the crime
and that death must be awarded only if the security of the state and society, public order
and the interests of the general public compelled that course, also sounded to be running
contrary to the decision in Jagmohan. Also, with the coming in to force of International
Covenant on Civil and Political Rights (ICCPR), many argued that, India as a member is
committed to progressive abolition of capital punishment.

The majority in Bachan singh upheld the constitutionality, substantially agreeing with the
reasons in Jagmohan. The four judges agreed on the proposition that, Articles 19(1) and 21
cannot be said to be infringed by the penal law of the country imposing sentences on
conviction. Further, it was held that the legislative changes brought about after
Jagmohan has in fact reinforced the reasons given in the case for upholding its
constitutional validity. They overruled Rajendra Prasad on two counts21 holding firstly,
that death penalty cannot be restricted only to cases where the security of the state and
society, public order and interests of the general public were threatened and secondly, that
after coming in to force of Ss. 354 (3) and 235 (2), due regard must be given to the crime as
well as the criminal

Bachan Singh decision became epoch making in the history of death penalty in India,
because of the way it dealt with the challenge of judicial discretion in sentencing.
The court recognised the fact that discretion in matters of sentencing is inherent in the
scheme of penal policy and it may neither be practicable nor desirable to imprison the
sentencing discretion of the judge in the straight-jacket of exhaustive and rigid
standards. However, the majority judges opined that it is not impossible to lay down
some guidelines. 22 Accordingly, the court agreed with an enunciation of mitigating
and aggravating circumstances drawing primarily from U.S decisions and Indian Penal
Code (amendment) Bill, 1978. 23 In conclusion they made the following statement
which was to become the bible for all later judicial pronouncements dealing with
death penalty-

It is, therefore, imperative to voice the concern that courts, aided by the broad
illustrative guidelines indicated by us, will discharge the onerous function with
evermore scrupulous care and humane concern, directed along the highroad of
legislative policy outlined in Section 354(3), viz., that for persons convicted of
murder, life imprisonment is the rule and death sentence an exception. A real and

Jagmohan Singh the retention of such a system necessarily violates Article 14 guarantee of equality before law
Rajendra Prasad v. State of U.P, AIR 1979 SC 916 para 6
21
The court in Rajendra Prasa had held that the special reasons u.s 354 (3) must relate to the criminal rather than
the crime.
22
Para 193
23
The aggravating circumstances are as follows: If the murder has been committed after previous planning and
involves extreme brutality or the murder involves exceptional depravity or the murder is of any member of any
of the armed forces of the union or a member of the police force or any public servant (while such person was
on duty or done in consequence of anything done or attempted to be done in the lawful discharge of such duty)
or murder of a person who was acting in the lawful discharge of his duty u/s 43 of Cr PC or who had rendered
assistance to the Magistrate or police officer demanding his aid or requiring his assistance u/s 37 and s.129 of Cr
PC. The mitigating circumstances include extreme mental or emotional disturbance, age of the accused, the
probability that the accused would not commit criminal acts of violence as would constitute a continuing threat
to society, the possibility that the accused can be reformed and rehabilitated, in the facts and circumstances of
the case the accused believed himself to be morally justified in committing the offence, the accused acted under
duress or domination of another person, and that the condition of the accused showed that he was mentally
defective and that the said defect unimpaired his capacity to appreciate the criminality of his conduct.
abiding concern for the dignity of human life postulates resistance to taking a life
through law's instrumentality. That ought not to be done save in the rarest of rare
cases when the alternative option is unquestionably foreclosed. (emphasis added)
However, Justice Bhagwati in his minority opinion held that constitutional validity of death
penalty as an alternative punishment u/s 302 IPC cannot be sustained as it does not serve any
social purpose or advances any constitutional value and is totally arbitrary and unreasonable. He held
it be violative of Articles 14, 19, and 21 of the Constitution.
The principle laid down by the court was further explained and elaborated in the decision of
Machi Singh v. State of Punjab. 24 The court held that a balance sheet of aggravating
and mitigating circumstances has to be drawn and while doing so the mitigating
circumstances have to be accorded full weightage and a just balance has to be struck between
them before the option is exercised. Adding to the aggravating circumstances already given
in Bachan Singh, the Court said that when the communitys collective conscience is so
shocked that it will expect the holders of judicial power centre to inflict the death penalty
irrespective of their personal opinion. According to the court, the community may
entertain such a sentiment in the following instances- 1)when the manner of
commission of the crime is extremely brutal, grotesque, diabolical, revolting or
dastardly, 2) motive depicting total depravity and meanness 3) when the crime is
anti-social or abhorrent 3)when the crime is enormous in proportion and 4)
personality of the victim of murder.
Formulation of rarest of rare was a substantive shift in the law relating to death
penalty in India. Though the court agreed with Jagmohan in most of the areas, it
was a step forward in making death penalty an exception. It is also significant for
emphasising on the reformative and rehabilitative purposes of punishment. The
role of the court in balancing the need to restrict the imposition of death penalty
and the legislative policy of retaining it , is commendable. However, the way in
which the court has tried to regulate judicial discretion so as to bring about
uniformity in sentencing has not fetched much positive results as will be shown in
the following sections.

IV. Reading Bachan Singh wrong !


Three decades after the Supreme Court decided Bachan Singh, rarest of rare doctrine has
become synonymous with death penalty in India. The law laid down in Bachan Singh was
referred as binding by all the subsequent benches. However, the extent to which many of the
benches understood the spirit of rarest of rare doctrine remained controversial. This came
on record, when the Supreme Court while deciding Santhosh Kumar Bariyar v. State of
Maharashtra25 held that some of its judgements were decided per incurium the constitutional
bench decision in Bachan Singh. In the judgement of the division bench written by Justice
S.B Sinha, the court restated the crux of the rarest of rare doctrine. According to the court the
doctrine can only be invoked when two conditions are satisfied- viz. 1) that the case belongs
to the rarest of rare category and 2) the alternative option of life imprisonment will not suffice
in the facts of the case. Further, it was observed that as rarest of rare dictum serves as a
guideline in enforcing S. 354 (3) (Cr.PC) and entrenches the policy that life imprisonment is
the rule and death punishment is an exception.. (it )places an extraordinary burden on the
court, in case it selects death punishment as the favoured penalty, to carry out an objective
assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum. The court

24
AIR 1983 SC 957.
25
(2009)6SCC498
also emphasised that a conclusion as to rarest of rare shall entail identification of aggravating
and mitigating circumstances as to both the crime and the criminal. 26

Accordingly the court found that the decision in Ravji alias Ram Chandra v. State of
Rajasthan27 in so far as it held that only characteristics relating to the crime and not those
relating to the criminal would be relevant in sentencing, was wrong. 28 The court further
identified six decisions29 in which Ravji has been followed and death penalty was awarded
disregarding the Bachan Singh dictum that the sentencing court should not confine its
consideration "principally" or merely to the circumstances connected with the particular
crime, but also give due consideration to the circumstances of the criminal In addition, the
Bariyar bench also found the decision in Saibanna v. State of Karnataka30 wrong and running
contrary to Mithu v. State and Bachan Singh. Sainnaba was a life convict who committed the
murder of his wife and daughter while he was on parole. The Supreme Court sentenced him
to death on the ground that a person undergoing life imprisonment cannot be visited with
another term of imprisonment for life to run consecutively with the previous one. This
reasoning, according to the Bariyar bench runs contrary the decision in Mithu striking down
mandatory death sentence for murder unconstitutional. 31 Thus, going by the SC in Bariyar,
there has been a denial of the Constitutional protection of equality before law to many of
the convicts sentenced to death.

V. Tinkering with the machinery of death32


Another problematic area is regarding the consistent application of the Bachan Singh dictum
in cases with similar facts, often giving rise to allegations of injustice. Justice Bhagavatis
observations in the minority opinion of Bachan Singh proved prophetic in due course and the
sentencing policy emerging from the decisions of different benches on similar facts, were
often inconsistent with each other.
For instance, in Kailash Kaur v. State of Punjab33 the court expressed the opinion
that when cases of dowry murder is brought before the court and it is proved beyond
reasonable doubt, the maximum penalty must be imposed so that it would act as a
deterrent against others. However in Ravindra Trimback Chouthmal v. State of
Maharashtra 42 , where the husband with the help of his father killed his eight month
pregnant wife, for remarrying another so that he could get more dowry, the court refused

26
Para 62 and 63
27
AIR1996SC787
28
The court in Rvjis case held that, The crimes had been committed with utmost cruelty and brutality without
any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are
germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if
appropriate punishment is not awarded for a crime which has been committed not only against the individual
victim but also against the society to which the criminal and victim belong.
29
Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra, AIR2009SC56 ; Mohan Anna Chavan v. State
of Maharashtra (2008) 11SCC113 ; Bantu v. The State of U.P. (2008)11SCC113 ; Surja Ram v. State of
Rajasthan 1997CriLJ51 ; Dayanidhi Bisoi v. State of Orissa 2003CriLJ3697 ; State of U.P. v. Sattan @
Satyendra and Ors (2009)4SCC736.
30
(2005)4SCC165
31
Para 50, Bariyar
32
Usage by Justice Blackmun in Callins v. Collins (1994 US) where he expressed his views as to how
imposition of death penalty in U.S is fraught with arbitrariness, discrimination, caprice, and mistake.
33
(1987) 2 SCC 631
to treat it as a case of rarest of rare. The reasoning given by the court is that, dowry
deaths have ceased to belong to that species of killing. A simple understanding of the
logic of the court would mean that dowry deaths would not belong to this category
because of its growing incidence. This conclusion was reached by the court even after
referring the case as a murder most foul and blood-boiling.34 Aberration can also be felt
in cases involving murder of wife and children. In Dharmendra Singh35 the court
commuted the death sentence where in Kheraj Ram36 death was sustained and in both cases
the convict had murdered their wives suspecting the parentage of their children.

Swami Shraddananda v. State of Karnataka37, where the accused killed his


wife was yet another decision for which the Supreme Court was severely criticised
for deviating from its earlier pronouncements. The court accepted that it is a pre-
planned murder committed by someone misusing trust and for material benefits, but
refused to award death on the ground that he did not cause any mental or physical pain
to the victim and came to the conclusion that crime committed by the accused was not
very grave and the motive behind it cannot be said to be highly depraved. This seems to be
running contrary to earlier pronouncements where the death penalty was awarded for
murders committed by even domestic helps misusing trust.38 In Dhanajoy Chatterjee v.
State of West Bengal 39 the court awarded death sentence to a security employee of
the residential colony, who raped and killed a teenaged girl as retaliation for his
transfer on her complaint. The court observed that the savage nature of the crime
shocked the judicial conscience. But in some other cases of similar nature, where rape and
murder of even younger girls were involved, the court refused to sustain the death
sentence awarded by the lower courts.40 Again inconsistency can be seen the way the
Apex court has dealt with cases of Damu41 and Sushil Murmu, 42 which were cases
involving child sacrifices. The Court commuted death in the former case where three
children were sacrificed, but refused to do so in the where one child became the victim.

Yet another judgement, though of a lower court, that cannot be ignored is that of State of
Guarat v. N.A Chhara and others43 commonly referred to as Naroda Patiya, decided in the
context of Godhra communal violence where a violent mob consisting of the convicts were
34
For a detailed critique of the case see Prof. B.B Pande, Murder most fould, but not rarest of rare, (1996) 5
SCC Jour 1.
35
Dharmendrasingh v. State of Gujarat, AIR 2002 SC 1937
36
Khera Ram v. State of Rjasthan, AIR 2004 SC 3432.
37
AIR2008SC3040,
38
In Amritlal Someswar Joshi v. State of Maharastra, (1994) 6 SCC 186, where also the accused, a cook, for
committing robbery brutally murdered three members of the family. Also see Mukund v. State of U.P,
(1997) 10 SCC381 and Anshad v. State of Karnataka, (1994) 4 SCC 38. However in Earabhadrappa v. State
of Karnataka, (1983) 2 SCC 330 the appellant who was the domestic help of the victims family committed
the murder and took the ornaments, cash and other things belonging to the victim. He used to sleep in the
house and was familiar with everything there and actually committed the crime misusing the trust, the master
reposed on him. The trial court as well as the High Court convicted and sentenced him to death. But the
Supreme Court refused to consider it as satisfying the requirements mentioned in Bachan Singh.
39
(1994) 2 SCC 220
40
State of Maharashtra v. Suresh, (2000) 1 SCC 471 involved the rape and murder of a four year girl. The
court refused to inflict death on the ground that the HC had altered the sentence of death awarded by the trial
court. Kumudi Lal v. State of U.P, (1999) 4 SCC 108, which involved the rape and murder of a teenage girl,
the court found that the victim was not probably unwilling to let the accused to have some liberty with her and
refused to award death sentence.
41
Damu v. State of Maharashtra, AIR2000SC1691
42
Sushil Murmu v. State of Jharkhand, AIR2004SC394
43
available http://www.outlookindia.com/article.aspx?282159
proved to have committed 96 murders and 125 attempts to murder. The judge expresses
shock over the conduct of the accused in throwing even innocent children in to the flames of
fire motivated by personal enmity, bias and hatred for the people having faith in different
religion and even holds that it can be considered as a case of rarest of rare. However, it
refused to impose death sentence taking in to account the fact that considerable time has
elapsed since the communal riot of 2002 and the accused have undergone the agonies of trial
for three years in which, on about 400 days, this case was conducted. Imposing the alternative
punishment of life imprisonment the court made the following observation- Noticing the fact
that the sword has been kept hanging for ten long years on the accused who were implicated
in the crime, the purpose of deterrence has already been party served in this duration, hence
death sentence should not be awarded even though it is held that it is a rarest of rare case 44

However this is not to suggest that all decisions of the Court awarding death
sentence was wrongly decided. It may also be noted that there were factors like deficiency
in evidence or an error on the part of trial/lower court etc. which compelled the court to
take a differing view, which has to be addressed in the broader context of the challenges
faced by our criminal justice system. However that cannot mitigate or remedy the damage
done such inconsistent decisions especially because it concerns the severest and
irrevocable punishment liked death. As observed by Bhagwati J, judicial error in
imposition of death penalty would indeed be a crime beyond punishment 45 and therefore
inconsistencies even of a smaller magnitude would violate the basic canons of justice. The
dilemma of the Supreme Court in the sentencing policy in death penalty was rightly aired
by a bench of the Supreme Court comprising of Justices S.B Sinha and Dalveer Bhandari
when they said, We have also noticed hereinbefore that different criteria have been
adopted by different benches of this courtNo sentencing policy in clear cut terms has
been evolved by the Supreme Court. What should we do? 46

VI. An ideal of impossible objectivity47

This leads us to the most controversial question of judicial objectivity. Delivering his
minority opinion in Bachan Singh, Justice Bhagavati had expressed his anxiety with respect
to vesting sentencing discretion with the judges that, the question may well be asked by the
accused: Am I to live or die depending on the way in which the Benches are constituted
from time to time? Is that not clearly violative of the fundamental guarantees enshrined in
Articles 14 and 21? This has been testified by later benches as well. In Swami
Shradhananda the Court admitted that The truth of the matter is that the question of death
penalty is not free from the subjective element and the confirmation of death sentence or its
commutation by this Court depends a good deal on the personal predilection of the judges
constituting the bench. The inability of the Criminal Justice System to deal with all major
crimes equally effectively and the want of uniformity in the sentencing process by the Court
lead to a marked imbalance in the end results.

44
Page 1950
45
para
46
Aloke Nath Dutta and others v. State of West Bengal, MANU/SC/8774/2006
47
Cardozo, Nature of Judicial Process (1921)
It is often regarded as a taboo to question the myth of pure objectivity/reason in judicial
process probably because of the notion that the judges do not create law, but only give effect
to the will of the legislature. This has been candidly stated by Montesque when he said that,
judges of the nation are only the mouths that pronounce the words of the law, inanimate
beings, who can moderate neither its force nor its vigour.48 However, it doesnt seem to the
whole truth taking in to account the way different benches of the Supreme Court has dealt
with capital punishment. Though it might not have always resulted in individual caprice in
complete disregard of law, it cannot be denied that, decision as to whether a person is to die
or live has more often been influenced by factors that are not purely objective.

The life of the convict depends on the constitution of the bench is a staunch criticism aired
not only by lawyers, academicians, and social activists, but also by the judges themselves. A
study comparing the conviction rates of three Supreme Court judges reported in the
Frontline, emphasises on the relevance of personal predilections of the judges in awarding
the death sentence. The author after comparing the approach of JJ K.G Balakrishnan, Ariit
Pasayat and S.B Sinha comes to the following conclusion-

Justice Pasayats conviction rate of about 73 per cent was significantly higher than the
collective conviction rate (19 per cent) of other judges during his tenure. Thus, a case not
allotted to Justice Pasayats Bench was about four times more likely to escape capital
punishment. A death-penalty case had an almost equal chance of being heard by Justice
Pasayats or Justice Sinhas Bench, but the convicts chances of living were almost 100
per cent if his case was allotted to the latter instead of the former. A prisoners chances
of living were better by more than 50 per cent if his case was allotted to Justice
Balakrishnans Bench rather than Justice Pasayats Bench.49

This can further be illustrated by mentioning two cases involving rape and murder of minor
girls. In Mohan,50 the accused was sentenced to death for rape and murder of two minor girls
and in Sebastian51 the accused was sentenced to life imprisonment for kidnapping, rape and
murder of a child. Both the accused had history of previous convictions for sexual offence
and there was hardly any difference except the composition of the bench. 52 Yug Mohan
Chuadhari, a lawyer actively propagate abolition of death penalty maintains in the context of
these two decisions that, while Justices .K.G Balakrishnan and S.B Sinha commuted all
death sentences for child rape and murder, justice A.Pasayath imposed death penalty in every
case even when the lower courts had acquitted the accused or commuted the sentence. 53

Many judgements in fact echo the sentiments and attitude of the judges towards death
penalty. For instance, many observations in judgements of Justice Krishna Iyer and Justice
Bhagavati candidly convey their commitment to human rights and staunch belief in
reformatory prospects of any criminal. This can be clearly understood from the way J. Iyer
48
Cardozo p. 169. A contrary view has been taken by French jurist Saleilles when he says, One will at the
beginning the result; one finds the principle afterwards; such is the genesis of all juridical construction. Once
accepted, the construction presents itself, doubtless, in the ensemble of legal doctrine, under the opposite aspect.
The factors are inverted. The principle appears as an initial cause, from which one has drawn the result which is
found deduce from it..
49
Yug Mohit Cahudhari, Uneven Balance, Vol. 29 (17) Frontline available at http:// www.frontlineonnet.co
m/fl2917/stories/20120907291702500.htm
50
Mohan Anna Chavan v. State of Maharashtra, MANU/SC/7863/2008
51
Sebastian @ Cevithian v. State of Kerala, (2010)1 SCC 58
52
Supra n. 49
53
Ibid
has expressed his disapproval to death penalty in Rajendra Prasad. In addition to his
observations based on human rights and human dignity, he finds death penalty to be having a
class and colour bias. Even J. Bhagvati can be seen to be agreeing with this proposition
with his observation in Bachan Singh that death penalty has a certain class complexion or
class bias in as much as it is largely the poor and the downtrodden who are the victims of this
extreme penalty.54 Though pure objectivity may be an impossible ideal to achieve, not
restricting individual factors forming judicial opinion to the minimum levels will shake the
public faith and confidence in the system.

VII. Conclusion
Balancing the individual interest and judicial discretion has been a formidable task the
judiciary has been trying to achieve. It is an unfortunate truth that attempts to bring
uniformity and consistency in judicial pronouncements and making it free from personal
predilection have not fetched much positive results and the imposition of death penalty in
India continues to be arbitrary and discriminatory. It is true that no straight jacket formula can
be created neither by the legislature nor by the judiciary and every case has to be decided on
its individual merits. But unlimited judicial discretion to choose between life imprisonment
and death penalty would indeed be catastrophic. Bachan Singh and Machi Singh were
attempts to curb such unguided discretion exercised by the judges. However, as the above
discussion shows even the apex courts decisions are vitiated by personal predilections of the
judges, resulting in dissimilar treatment of similar situations. In the absence of legislature
will to abolish the extreme penalty, which seems to be quite unlikely to happen in near future,
the judiciary will continue to do the balancing act. Thus, it is of utmost relevance that the
judiciary follow the precedents and deal with such cases with due care and caution. The
recommendation made by the Law Commission that death penalty cases must be heard and
decided by a Bench of five judges sounds promising here. 55 Care must also be taken to ensure
that subjectivity in decision making is reduced to the minimum so that the fate of a convict
does not depend on the constitution of the Bench. Though it is true that, the great tides and
currents which engulf the rest of men do not turn aside in their course and pass the judges
by, it is imperative for the judges to consciously rise above the standards of ordinary man
while acting as dispensers of justice.

******************

54
Para 365
55 th
187 Report of the Law Commission of India (2003).

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